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LAW AKD PRACTICE 



CONCERNING 



PATENTS AND TRADE-MARKS 

(AMERICAN AND FOREIGN). 



DIGEST OF PRACTICAL KNOWLEDGE FOR THE INVENTOR, 
PATENTEE, AND PROJECTOR. 



JAMES A. WHITNEY, 

t I 

Solicitor of Patents and Trade-Marks, Expert and Engineer, 

President of the New York Society of Practical Engineering, Professor of 

Agricultural Chemistry in the American Institute, Member of the 

American Society of Civil Engineers, late Editor of 

the American Artisan, etc., etc. 



Neto ¥odt : 4 

JOHN ROSS & COMPANY, PRINTERS, 

27 ROSE STREET. 

1873. 






Entered, according to Act of Congress, in the year 1873, by 

JAMES A. WHITNEY, 

In the office of the Librarian of Congress, Washington, D.C. 






INDEX 



Page 

Applications for Patents 15 

Arguments in Rejected Cases 19 

Assignments and Licenses 43 

Austro-Hungarian Patents 28 

Austro-Hungarian Trade-marks. . 33 

Belgian Patents 25 

Belgian Trade-marks 33 

British Patents 24 

British Trade-marks ... 34 

British Colonial Patents 29 

Canadian Patents 23 

Canadian Trade-marks 32 

Caveats 13 

Copyrights 42 

Courts Decisions of 45 

Courts, Testifying before the 36 

Cuban Patents 28 

Danish Patents 27 

Design Patents 14 

Engineering Department 38 

Expense of Securing a Patent 11 

Expert, Business of an 35 

Examinations, Preliminary 10 

Examination of Patents 35 

Examination of Questions of In- 
fringement 35 

Filing Applications, Proceedings 

Subsequent to 11 

Foreign Patents 22 

Foreign Trade-marks 32 

French Patents ( 25 

French Trade-marks .' 33 

German Patents 23 

German Trade-marks 33 

Inventors, Opinions of 7, 

11, 10, 17, 29, 32 

Inventions. Patentability of 10 

Infringement, Concerning Alleged 35 

Infringement, What Constitutes. . . 39 

Italian Patents 25 

Investigation in Patent and In- 
dustrial Records 36 

Licenses, Assignments, etc 43 

Models, Construction of it 

Norwegian Patents 27 



Page 
Novelty, What Constitutes Patent- 
able 18 

Patents, Duties of a Solicitor of . . . 5 

Patentability of Inventions 10 

Patents, Who may Secure 8 

Patents, U. S., Expense of Secur- 
ing 11 

Patents, Design 14 

Patent, How to apply for a 15 

Patents, Foreign 22 

" in Austria and Hungary.. 28 

" " Belgium 25 

" " British Colonies 29 

" " Canada 23 

" " Cuba 28 

" "Denmark 27 

" "France 25 

" "Germany 28 

14 " Great Britain 24 

"Italy 25 

" "Norway . . 27 

" "Portugal 27 

" ''Prussia 28 

" "Russia 26 

" " Spain 28 

" " South America 29 

" " Sweden 27 

" United States 5-22 

Patents, Examination of 35 

Portuguese Patents 27 

Prussian Patents 28 

Press, Opinions of the 7, 

9, 14, 17, 18, 37, 38, 39 

Rejected Cases 12 

Russian Patents 2f> 

Russian Trade-marks 34 

Spanish Patents 28 

South American Patents 29 

Swedish Patents 2 7 

Trade-marks, U. S SI 

" in Austria and Hun- 
gary :: ' ; 

'• " Belgium 33 

" Canada ■"■-' 

;i " France 33 

" " Germany 83 

" " Great Britain 34 

; * " Russia 34 

United States Patents 5 22 

United States Trade-marks tfi 



PATENTS AND TRADE-MAMS. 



The Duties of a Patent Solicitor. 

To secure a patent, the inventor, in addition to a model, 
must furnish the Patent Office with drawings so carefully 
prepared that they may be copied without trouble by photo- 
lithography ; a full description or specification ; an exact 
statement of what is claimed as new ; a petition ; and an affi- 
davit that he believes himself the original and first inventor. 
A patent will be granted upon a new and useful machine, 
process, compound, article of manufacture or design, but in any 
case, the conditions above-named must be fulfilled to the very 
letter, or the application will be rejected. Even after the 
patent is issued, if the specification is insufficient, or the claims 
are not broad enough to cover the entire invention, the paten- 
tee is liable to lose all or a portion of his rights should the 
case come into court in a contest with infringers. 

To prepare the application complete, in perfect conformity 
with the rules of the Patent Office, in such manner that the 
essential features of the invention shall be made sharply 
prominent and their novelty evident, and with such carefulness 
that the patent when granted will bear any amount of legal 
fence and quibbling without breaking down — this and nothing 
less comprises the duties of the patent solicitor who under- 
stands his business and attends to it. 

The importance of having an application properly prepared 
in the first instance cannot, indeed, be overrated ; hence arises the 



b PATENTS AND TRADE-MARKS. 

desirability of counsel thoroughly qualified to properly conduct 
the case. Concerning the choice of a solicitor, the Commissioner 
of Patents speaks in emphatic terms as follows : * 

''The value of their services will be proportioned to their 
skill and honesty ; so many persons have entered this pro- 
fession of late years without experience that too much care 
cannot be exercised in the selection of a competent man." 

The undersigned, while with the late firm of Brown, Coombs 
& Co., prepared nearly one thousand specifications of patents, 
and, having subsequently been for more than four years editor 
of the American Artisan, was brought into daily contact and 
sympathy with inventors, and kept well versed in patent prac- 
tice. During the past year, in business on his own account, he 
has cause for congratulation in the success which 'has attended 
his efforts — a result due in no small degree to his rule, rigidly 
followed, of giving 'personal and particula/r attention to each 
and every case placed in his hands, from the time of its re- 
ceipt until finally acted upon by the Patent Office. Without 
reflection upon those agents who prefer a course different 
from this, he is convinced that hundreds of applications for 
patents on valuable inventions are annually lost from the too 
common practice of having cases drawn originally by one 
person, and amendments, arguments, etc., prepared by an- 
other having no previous knowledge of the matter. Each 
case should receive throughout the special attention of some 
one person from the beginning to the end of the proceedings, 
and that person should be none other than the solicitor whose 
skill and reputation are virtually pledged to the inventor's 
interests. Address 

JAMES A. WHITNEY, 
Koom 11, 128 Broadway, 

New York City. 

The owner of an invention, worth, it may be. thousands of dol- 
lars, should exercise the strictest scrutiny as to whether the 
solicitor to whom he confides his interests is competent and reli- 
able. In forming a judgment in such a case, the experience of 
others is frequently of both interest and value. 

* Rules of Practice in the United States Patent Office, paragraph 131, page 33. 



PATENTS AND TRADE-MARKS. 7 

"James A. Whitney: 

1 ' Dear Sir : Within the last eight months, I have confided 
to your charge nine applications for patents on Electric Rail- 
way Signals, including seven American cases, one British, and 
one Canadian. These were all heavy cases, demanding in their 
preparation a high grade of scientific knowledge as well as 
legal ability. The fact that I am committing my entire 
American and foreign patent business to your hands is the 
highest practical illustration of my confidence in your ability 
and integrity as a patent agent, and as such I take pleasure 
in recommending you to the confidence of those who have 
patent business to be transacted. 

" I cannot too highly commend the course which you pursue 
in giving personal attention to the preparation of cases, and 
more especially their subsequent prosecution before the Patent 
Office. 

" I wish you immediately, if possible, to undertake some 
important expert business for our Company. 
* i Yours very truly, 

" Wm. Robinson, 
" Gen'l Manager Robinson Electric Railway Signal Co!' 
New Yokk, March 3, 1873. 



" Prof. James A. Whitney, the former editor of the American 
Artisan, New York, and President of one of our most influ- 
ential scientific and engineering societies, has lately engaged 
in the business of patent agent and expert, at 128 Broadway, 
New York. His editorial position, acquaintance, and research 
have made him intimately familiar with the principles and 
details of patent cases, and he possesses a right degree of 
skilled ability for the examination of patents, their successful 
negotiation, and the preparation of all needful papers for 
invention. Mr. Whitney's experience of over twelve years 
in this class of scientific labor, together with a penchant for 
scientific and mechanical pursuits, have developed into accom- 
plishments of practical merit. Those who wish to take out 
patents, or examine patent cases, or wish judicious informa- 
tion upon patent business, will do well to consult him." — 
The Horticulturist, Nt m York, July, 1ST0. 



PATENTS AND TKADE-MATIKS. 



Who Mat Secure Patents.* 

The original and first discoverer of any new and useful art, 
machine, manufacture, or composition of matter, or any new 
and useful improvement thereof, whether he be citizen or 
alien, is entitled to letters patent thereon, provided that it haw 
not before the date of his invention been invented by others 
in this country, or patented or described in a printed pub- 
lication in this or some other country ; also provided it has 
not been once abandoned to the public or on sale for more 
than two years previous to filing the application for protec- 
tion. But a patent will not be refused merely because the 
invention or discovery, in whole or in part, has been known 
and used abroad before the date of the applicant's invention, 
unless it has been patented or described in some printed 
publication. 

What in the eye of the law constitutes a completed inven- 
tion or discovery is a matter of grave consequence to inven- 
tors, because proof of priority of invention in case of inter- 
ference, etc., frequently hinges directly upon it. The query 
is definitely answered by the following from the "Patent 
Office Rules of Practice " : 

" Merely conceiving the idea of an improvement or machine 
is not an invention or discovery. The invention must have 
been reduced to a practical form, either by the construction 
of the machine itself or of a model thereof, or by making a 
drawing of it, or by such a disclosure of its exact character 
that a mechanic, or one skilled in the art to which it relates, 
can and does, from the description given, construct the im- 
provement or a model thereof, before it will prevent a subse- 
quent invention from obtaining a patent." 

On this subject, furthermore, George Ticknor Curtis, in his 
" Treatise on the Law of Patents/' has the following, showing 
how essential it is that, in order to prevent anticipation in 
securing valid patents, inventions should be wrought into 
practical shape at as early a date as possible : 

"It is not sufficient, to defeat a patent already issued, that 
another person has conceived the possibility of effecting what 
the patentee has actually accomplished. To constitute a prior 
invention, the party alleged to have made it must have pro- 



PATENTS AND TRAD1-MAKKS. 9 

ceeded so far as to entitle himself to a patent, in case lie had 
made an application ; or, in other words, he must have re- 
duced the idea to practice, and embodied it in some distinct 
form. It is true that, in a race of diligence between two inde- 
pendent inventors, our law provides for the priority of conception 
by allowing* the one who first invents to obtain the patent, if 
he was using reasonable diligence in adapting and perfecting 
his invention, although a second inventor has, . in fact, first 
perfected the invention, and reduced it to practice. But where 
a patent has been granted to a patentee who did not surrepti- 
tiously obtain his knowledge from a prior inventor who was 
using reasonable diligence to perfect and adopt the invention, 
in order to defeat it on the ground that the patentee was not 
the first inventor, some previous inventor must not only 
have the idea, but must also have carried the idea into practi- 
cal operation ; for he is entitled to a patent who has first 
perfected and adapted the invention to practical use." 



Personal. 

" Mr. James A. Whitney, recently editor of the American 
Artisan, and now President of the New York Society of 
Practical Engineering, has opened an office in New York 
City (128 Broadway, Room 11) as Solicitor of Patents and 
Expert in Patent Cases. Mr. Whitney, in addition to his 
just claims, scientifically, as a member of the profession of 
civil engineering, is eminently a practical engineer. There 
are few branches of practical engineering which he has not 
merely mastered in the books, but familiarized himself with by 
observation and experience. He is conversant with the engi- 
neering sciences, not only in the abstract, but as applied in 
shops, structures, and mines, and in the manifold forms and 
agencies of transportation. As respects, therefore, the practical 
adaptation to its proposed end of any new machine or process, 
his judgment is at once that of the savant and the expert. Lie 
has acquired the practice as well as mastered the theory of 
the manufacturing arts. These considerations lead as, quite 
unsolicited from any quarter, to heartily commend Professor 



10 PATENTS AND TB ADE-MAHKS. 

Whitney to an even wider acquaintanceship among the field 
of inventors, and especially to suggest to those having un- 
tried devices of any kind to avail themselves of his very 
varied and accurate knowledge of what has been done in 
that particular direction, and of the truest adaptation of means 
to that end. There would be a vast economy of thought, labor, 
time, and money, if inventors — the most of whom have at 
first little knowledge of what has been done or attempted in 
their specialty — could avail themselves of the suggestions and 
advice of men accomplished in the history and skilled in 
the details of mechanical improvements — men honest and un- 
selfish, and equally above fear and favor. Such we know 
Mr, Whitney to be ; and, in commending him to our readers, 
we have felt that we could do no less than express the grounds 
of a confidence which is the result of an intimate professional 
and personal acquaintance." — Chicago Eailicay Review, August, 
1872. 



Patentability of Ixvextioxs. 

An inventor naturally desires to know beforehand, as nearly 
as possible, whether his invention is new, and whether he can 
obtain a patent upon it. Of late years, the number of patented 
inventions has so wonderfully increased that the only certain 
mode of ascertaining this is to make the application, and await 
the result. But there are some classes of improvements in which 
so little has been accomplished that an expert can, of his own 
knowledge, give a pretty correct opinion. For this no charge is 
made. In others, a preliminary examination at the United States 
Patent Office and in the Patent Records of England will show 
whether the invention has been previously patented in the 
countries named. This examination is only advisable when 
the cost of models and other essentials in the preparation of 
the case is very great, and a strong assurance of success is, 
very properly, desired before venturing upon unusual expense. 
Such a search, to be of any value, involves much labor. A 
mere glance at the models in the Patent Office is practically 
of no account. The fee for such a search is twenty-five dol- 
lars and upward. 



PATENTS AND TRADE-MARKS. 11 

The Expense of Securing a Patent. 

The first installment of the Government fee is fifteen dollars ; 
the agency fee for preparing the case complete is from 
twenty-five dollars for the most simple cases to thirty and 
forty dollars and upward, in proportion to the labor involved. 
When the patent is allowed, a final Government fee of 
twenty dollars is due before it can issue. A period of six 
months is permitted for the payment of this final fee. The 
inventor can obtain copies of his patent for twenty-five cents 
per single copy, or one dollar for ten. 



Proceedings Subsequent to Filing Applica- 
tions. 

In very many instances, the work of the patent solicitor has 
only commenced when the application is filed. Sometimes, when 
an application is brought up for examination in the Patent 
Office, the examiner in charge objects to a claim, or refers to 
some previous invention as partly anticipating it ; in such 
instances, the undersigned personally investigates the entire 
case without extra charge, and secures for his client the 
very best claim possible. If the examiner rejects the claim, 
the inventor is promptly notified, and an opinion — also with- 
out charge — is given as to the probability of obtaining the 
claim by appeal to the Examiners-in-chief. For this appeal, 
the Government fee is ten dollars ; the agency fees are 
moderate, and a portion is contingent upon success. In the 
event of a rejection by the Examiners-in-chief, a second 
appeal may be had to the Commissioner of Patents, and after 
this, as a final resort, to the Supreme Court of the District of 
Columbia. 

Mabch 8, 1873. 
James A. Whitney, Esq. : 

Dear Sir : Your favor notifying us of the allowance of our 
application for a patent on turpentine filter is just at hand. 
We had begun to despair of this case, as it had been pre- 



12 PATENT> AND TBADB-MABK8. 

i in toto when a patent for it was applied for 

throng agency of . You have Bnc "Irui- 

rably, for which receive <>ur thanks. 

jpect fully. 

F. <». RICHAKD60N, 
IOTJohm Street, \'kw Yui;k. per F. J. RlCHABDBOK. 



Rejected Cases, etc., etc. 

Particular attention is given by the undersigned to re- 
jected and defective cases, reissues, interferences, disclaimers, 
and cases that have lapsed for non-payment of the final 
Government fee. Every matter of this kind must be judged 
upon its own particular merits. In writing for information, 
please state in full the essential features of the case. For an 
opinion, based on such statement, the fee is five dol] 
which should be enclosed with the statement. The agenry 
fee for undertaking cases of the classes indicated is a ma 
of special arrangement, but will always be rej and 

proportioned to the work involved. A reissue should 
applied for in all cases where the claim is believed to cover 
less than the actual invention ; or where, from any defect 
or irregularity, there may be doubts of the entire validity of 
the patent. Many of the most valuable patents in existence 
have been made so by reissues, whereas, in their original 
form, they would have been comparatively worthless. Wlien 
a patent covers several distinct features that are capable of 
separate use, or are liable to be separately infringed, it is 
frequently advisable to have the original patent reissued in 
several subdivisions, a separate patent on each distinct por- 
tion of the improvement. The famous McCormick patent on 
harvesters was reissued in no less than ten separate patents. 
By this means, a suit can be brought for infringement on 
one feature of the original invention, without bringing the 
others into court. 

When it is found that the claim of a patent embraces 
more than the patentee is legally entitled to, the error can 



PATENTS AND TRADE-MARKS. 13 

be cured by filing a disclaimer of the parts that should not 
be included. 



Ca vea ts. 

The following from the rules and practice established by 
the Patent Office indicates the scope and nature of caveats : 
' ' Any citizen of the United States, or alien who has resided 
for one year last past in the United States, and has made 
oath of his intention to become a citizen thereof, can file a 
caveat in the secret archives of the Patent Office on the pay- 
ment of a fee of ten dollars therefor. And if at any time 
within one year thereafter another person applies for a 
patent with which such caveat would in any manner inter- 
fere, such application will be suspended, and notice thereof 
will be sent to the person filing the caveat, who, if he shall 
file a complete application within the prescribed time, will 
be entitled to an interference with the previous applica- 
tion, for the purpose of proving priority of invention, and 
obtaining the patent, if he be adjudged the prior inventor. 
The caveator, if he would avail himself of his caveat, must 
file his application within three months v from the day on 
which the notice to him is deposited in the Post-office at 
Washington, adding the regular time for the transmission 
of the same to him ; and the day when the time for filing 
expires will be mentioned in the notice or endorsed thereon. 
The caveator will not be entitled to notice of any application 
pending at the time of filing his caveat, nor of any application 
filed after the expiration of one year from the date of filing 
the caveat ; he may renew his caveat at the end of one year 
by paying a second caveat fee of ten dollars, which will con- 
tinue it in force for one year longer, and so on from year to 
year, as long as he may desire. If a caveat is not renewed 
at the end of the year for which it was filed, it will no 
longer be regarded as in the secret archives of the office." 
The purpose of a caveat is to prevent an interloper from 
securing a patent while the original inventor is perfecting 
his invention and getting ready to make his application 
complete. A caveat accomplishes this by providing secret 



14 PATENTS AND TKADK- MARKS. 

proof in tlic Patent Office of the date at which the inventor 
officially claims the essential principle of the improvement. 
ata should be drawn up with great care. Drawings 
must be furnished when the nature of the case admits. The 
Government fee for a caveat is ten dollars ; the agency fee 
from ten tc twenty-rive. Caveats can be prepared from pencil 
sketches and oral descriptions, no model being required. 

" Of Prof. James A. Whitney we can speak from a personal 
acquaintance. He is a gentleman of high scientific attain- 
ments. Any person seeking professional advice from him 
will be certain of just and honorable treatment. He is inca- 
pable of practising the tricks and deceptions that inventors 
are sometimes subject to in seeking advice in New York." — 
Noricich, Conn., Daily Bulletin, Jfay 29, 1872. 

"Mr. James A. Whitney, Xew York, lias recently opened an 
office in that city for the prosecution of claims at the Patent 
Office, and as an expert in patent cases. His long experience 
in this field of investigation has rendered him familiar with 
the business in all its branches, and we can confidently re- 
commend him to those needing his services." — Prairie Farmer, 
Chicago, June 1, 1872. 



Design Pa texts. 



The law of July 8, 1870, provides that " any person who, 
by his own industry, genius, efforts, and expense, has invent- 
ed or produced any new and original design for a manufac- 
ture, bust, statue, alto-relievo, or bas-relief ; any new and 
original design for the printing of woollen, silk, cotton, or 
other fabrics ; any new and original impression, ornament, 
pattern, print, or picture, to be printed, painted, cast, or 
otherwise placed on or worked into any article of manufac- 
ture ; or any new, useful, and original shape or configura- 
tion of any article of manufacture, the same not having been 
known or used by others before his invention or production 



PATENTS AND TEADE- MARKS, 15 

thereof, or patented or described in any printed publication, 
may, upon payment of the duty required by law, and other 
due proceedings, had the same as in cases of inventions or 
discoveries, obtain a patent therefor." Also, that patents 
for designs may be granted for the term of three years and 
six months, or for seven years, or for fourteen years, as the 
applicant may in his application elect. The Government fees 
for design patents are ten, fifteen, and twenty dollars respec- 
tively, according to the term of the patent. The agency fees 
are from ten to twenty dollars. 

It will be seen that a design patent covers almost anything 
depending wholly upon shape or configuration. In many 
cases, a patent may be obtained upon an invention as a ma- 
chine or article of manufacture ; and, in addition to this, a 
design patent covering its shape or conformation, a kind of 
double protection being by this means secured. 



In Order to Apply for a Patent, 

Send a substantial model (for design patents, no model is 
required) not exceeding twelve inches in any of its dimensions, 
together with a full description of the construction, opera- 
tion, and advantages of the invention, and separately by mail 
remittance of fifteen dollars (amount of first Government fee). 
Prepay express charges, and write the address plainly and 
in full. As soon as the case is prepared, it will be presented 
for signature, and oath, and payment of the agency fee. 
The case will then be sent to the Patent Office, and its pro- 
gress carefully attended to until final action is had upon it 
Clients will always be kept informed of the condition of 
their applications while before the Patent Office. All com- 
munications are strictly private and confidential. Address 
James A. Whitney, 

Patent Agent and Expert, 

1 k >S Broadway, New York. 



The following is from a client whose inventions relate to the 
important subject of coking the refractory lignites of the West : 



16 PATENTS AND TRADE-MARKS. 

Salt Lake City, U. T., 

March 17, 1873. 
James A. Whitney : 

Dear Sir : Your faYor of the 20th instant is received. The 
intelligent, prompt, and efficient manner in which you have 
attended to the business which I lately entrusted to you 
deserves my best thanks. You readily grasped the points, 
and worked them up in the shortest possible time, and made 
three applications for patents embracing distinct improve- 
ments, all based on leading features, all of which applications 
were allowed by the Patent Office. It is especially gratifying 
to me to acknowledge the pains you took to follow out the 
suggestions which I made to you, and the promptness with 
which you pushed the cases. If I should have any more busi- 
ness of this kind, I shall again apply to you, and recommend 
you also to my friends. Yours truly, 

Henry Engelmann, 

Min ing Engineer. 

That below refers to improvements in sheet metal articles 
already acknowledged to be worth tens of thousands of dol- 
lars — a striking example of the value of what many would 
call " small improvements," but which are truly great in their 
effect upon the industries to which they relate : 

March 7, 1873. 
Mr. James A. Whitney : 

Sir : I pretend to know something of patents and patent 
solicitors. I have taken out more than twenty American 
patents on my inventions, and several foreign, and have done 
business with the leading patent agents in New York City. I 
like your style of doing business best of all. It meets exactly 
the needs of inventors. My eight cases put in your hands 
were satisfactory every way. I never had business done more 
promptly, or a case allowed in less time. I shall use my 
best influence with friends to have them place their business 
in your hands ; for I am sure they will consult their own 
interests by doing so. Truly yours, 

George II. Chinnock, 
56 Cortlandt Street, New York. 



PATENTS AND TRADE-MARKS. 17 

Rondout, November 13, 1872. 
Mr. James A. Whitney, 128 Broadway, New York : 

I am abundantly pleased witli your success in obtaining a 
patent on my hillside plough. I recommend your agency 
to all inventors who want their cases carefully prepared and 
attended to. 

Thomas J. Burgess. 

From the Methodist, Weto York, Jane 1, 1872. 

Our old editorial friend, Prof. J. A. Whitney, late of the 
Artisan, has opened an office at 128 Broadway as Solicitor of 
Patents, Expert in Patent Cases, and Mechanical Engineer. 
President of the New York Society of Practical Engineers, and 
Professor of Agricultural Chemistry to the American Insti- 
tute, he brings to his business special qualifications. A solici- 
tor of patents needs such qualifications, for it is his function 
to assist inventors in preparing drawings and descriptions, 
specifying what is new in the invention, and seeing that all 
the proceedings are in accordance with the law and routine 
of the Patent Office. Prof. Whitney had abundant experience 
in these matters in the Artisan Office. As expert and me- 
chanical engineer, he is a capital judge of new inventions 
and machines, of their claims compared with old ones, their 
interference with patented ones, their best forms and propor- 
tions. We commend him heartily to inventors and others 
needing such sur vices." 

From the Iron Age, New York, June 6, 1871. 

We are pleased to learn that Mr. James A. Whitney, for 
some years editor of our contemporary, the American Artisan, 
has established a patent agency at No. 128 Broadway, to the 
business of which he will hereafter give his personal and 
careful attention. Mr. Whitney has had large experience 
in the preparation of drawings and specifications for all 
classes of inventions, and his familiarity with patent records 
of this and other countries will prove of much value to his 
clients in making out claims likely to secure a favorable con- 
sideration at the Patent Office. We take pleasure in com 
mending the new agency to the favor of inventors. 



18 PATENTS AND TRADE-MARKS. 

From Moore s Rural New Yorker, June 8, 1872. 

Prof. James A. Whitney lias established himself as Patent 
Solicitor, Expert, and Mechanical Engineer, at 128 Broadway, 
New York City. Mr. Whitney is qualified, by experience and 
practical knowledge, for the work specified, and is a conscien- 
tious, industrious gentleman, whose life and experiences have 
been such as to develop the fullest sympathy with men en- 
gaged in industrial pursuits, especially inventors. 



What Constitutes Patentable Novelty. 

There are a large number of cases in which it is diffi- 
cult at the first glance to draw the line between "patentable 
novelty" and the "result merely of mechanical judgment"; 
and the greatest errors ever committed in the examination 
of applications by the Patent Office are made in this. The 
Offic -, however, is always open* to argument, and commonly a 
just decision can be obtained on an application rejected as 
lacking in invention, provided the case be drawn up with 
due knowledge of the practical merits of the improvement, 
of the intent and meaning of our patent law, and of the 
principles established by the decisions of American and Eng- 
lish courts. For instance, the mere substitution of one ma- 
terial for another is not patentable. But if, by the use of 
a material never before employed for $ given purpose, a new 
and useful result is produced, the inventor of the improve- 
ment is entitled to a patent. In like manner, the mere 
attachment together of two machines will not suffice to sup- 
port a claim; but if the machines are so combined that, in 
order to subserve any particular purpose, the operation of one 
is dependent upon that of the other, this combination is clear- 
ly patentable. It must be kept in mind that the Patent 
Office must act upon an application just as it comes before 
it ; the Office cannot make or even suggest amendments. If 
the inventor causes his specification to present a false and 
unfavorable impression upon the examiner, it is mainly his 
own fault if a decision of corresponding character is given ; 
even when the adverse decision is plainly and flagrantly an 
error, the examiner is entitled by law and courtesy to argu- 



PATENTS AND TRADE-MARKS. 19 

ments setting the matter in its true light. To prepare the 
application, in the first place, so that patentable novelty shall 
not be confounded with the result merely of mechanical 
judgment, and, in the event of a rejection, to be able to 
show on legal grounds the right of his client to a patent, 
calls for the most conscientious discharge of duty by the 
patent solicitor. The following from the records of the 
Patent Office gives an example of the class of inventions here 
especially considered, the legal principles which govern their 
patentability, and the nature of the arguments filed in 
establishing the fact of patentability where such exists. The 
application referred to is that of Messrs. Richardson (hereinbefore 
mentioned) for a turpentine filter, and which had been total- 
ly rejected on a previous application filed by another agency 
claiming an experience in the business of more than twenty 
years. It will be noticed that the application as filed by the 
undersigned, although at first rejected, was allowed on the 
argument without changing a word of the specification or claim : 

[No. 1]. 27. IT. S. Patent Office, 

Washington, D. C, Dec. 24, 1872. 
Frederick Gr. Richardson, Esq., care James A. Whitney, 
No. 128 Broadway, New York City : 
Please find below a copy of communication from the exami- 
ner relative to your application for a patent for a turpentine 
filter, filed Dec 17, 1872. Very respectfully, 

M. D. Leggett, 

Commissioner. 

[687.] 
There appears to be no difference between the filter as 
devised by applicant and the one now in common use for the 
same purposes as are proposed by 1 im, with the exception 
that applicant has adopted a different quality of material 
than has been heretofore used ; and inasmuch as one quality 
of wire-cloth has long been used for straining turpentine, 
milk, jellies, etc., the adoption of another quality of the 
same material wire-cloth for the same purpose is a change so 
obvious as not to require invention, and cannot form the 
subject of patent. A patent is therefore refused. \ovef 



20 PATENTS AND TRADE-MARKS. 

Statement. 

In the matter of Frederick G. Richardson's Application 
for a Patent on Improvement in Turpentine Filter, 
filed Dec. 17, 1872. 

This invention consists in a turpentine filter constituted by 
the combination of a twilled wire-cloth web with a circum- 
ferential rim, the combination of this variety of wire-cloth 
with such rim having never, so far as known, been made 
previous to the invention by the applicant, and a material im- 
provement in the trade having been effected by the said 
invention, for the reason that, whereas turpentine niters 
made with ordinary or unt willed wire- cloth have proved too 
weak for continued or economical use, when made with the 
requisite fineness of mesh, because of the extreme fineness of 
the wire necessarily employed ; the twilled cloth, by giving 
a fine mesh with a coarse wire, ensures both efficient opera- 
tion and the requisite strength and consequent durability. 
The applicant, by discovering the peculiar characteristic of 
twilled wire-cloth with reference to the requisites of filtering 
hot turpentine and resin, and by combining the said mate- 
rial (never before used for the purpose) with a means for its 
successful use in the industry to which it refers, has pro- 
duced a new article of manufacture, possessing a marked 
mechanical difference from all other devices for the same 
purpose, and producing greatly improved results in the one 
to which it refers. That changes in the structure of appara- 
tus, apparently very slight, may be the subject of valid 
patents, especially when accompanied by greatly improved re- 
sults, is an acknowledged truth both in the jurisprudence of 
this and other countries. For instance, in the case of Kneass 
vs. the Schuylkill Bank (see Curtis on " Patents," 3d ed., page 
30), the substitution of steel engraving for copperplate on 
bank-notes w r as held to constitute a distinct and patentable 
improvement. 

So also : The use of a gas-jet for singeing lace, in lieu of an or- 
dinary lamp-flame, producing an improved result, was held to be 
a patentable improvement; so also was the use of anthracite 
and hot-air blast in the manufacture of iron, in the place of 
bituminous coal and hot-air blast. ( See Curtis, p. 41. ) 



PATENTS A XL) TRADE-MASKS. 21 

So also : In the case of an alloy previously well known, 
but never used for sheathing ships, its use for such purpose 
was adjudged patentable. In this case, the jury were charged 
by Chief- Justice Tindal "that the previous existence of plates 
made in the proportions of metal embraced by the patent was 
immaterial, provided that they had never been applied to the 
purpose for which the patentee used the plates manufactured 
by him." 

I quote further the language of Curtis on this case, as hav- 
ing especial bearing upon the matter in hand. "The case,'* 
says he, "is a valuable illustration of the doctrine that, when 
the new use of a thing produces an important effect never 
before produced, or develops or makes practical some new 
property of matter not previously known, the new use is 
not analogous to the former use, and therefore the novelty 
of the mere agent is immaterial." 

The case of Newton vs. Vaucher ( see Curtis, page 54 ) may 
also be cited. In this the use of soft metal for making 
steam tight contact between moving surfaces was held to be 
an invention independent of the use of the same agent for 
diminishing friction between moving surfaces. 

In view of the precedents thus established, I trust that Rich- 
ardson's application may be reconsidered, and the claim, as origi- 
nally filed, allowed. 

Respectfully submitted, 

James A. Whitney, 

Attorney. 



U. S. Patent Office, 
Washington, D. C, February 24, 1873. 

Sir : Your application for a patent for an improvement in tur- 
pentine filters has been examined and allowed. The patent 
will be engrossed for issue on the receipt of twenty dollars, the 
balance of the fee; payable thereon, if received within six months 
from this date. If the final fee is not paid within that time, the 
patent will be withheld, and your only relit 1 !' will be under the 
provisions of section 85 of the Patent Act approved July 8, 1870. 

When you send the final fee, you will also semi, distinctly and 
plainly written, the name of the inventor and invention, and, it* 



22 PATENTS AND TRADE-MARKS. 

assigned, the names of the assignees. If you desire to have the 
patent issue to assignees, an assignment containing a request to 
that effect must be duly filed in this office on or before the date 
of payment of final fee. 

You are requested at the same time to notify the office how 
many extra copies of the specification and accompanying draw- 
ing, if any, you desire to have furnished you. These copies will 
be charged for at the following rates : single copies, uncertified, 
25 cents; twenty copies or more, 10 cents each. The money 
should accompany the order. Respectfully, 

M. D. Leggett, 

Commissioner, 
F. G. Kichardson, 

Care J. A. Whitxey, New York City. 



[Xote. — It will be seen that the above letter of allowance gives also items 
of information concerning assignments, copies of patents, etc.] 



Foreign Patents. 



Of late years, the increased facility of commercial inter- 
course between nations, and the development of arts and indus- 
tries in different countries, has greatly promoted the present 
and prospective value of patents wherever patent laws exist ; 
and a patent in any one of several foreign countries, if proper- 
ly managed, should be worth nearly or quite as much as the 
American one. This is notably true in those instances where the 
improvement relates to something of universal use, such as an 
article of apparel, a household utensil, or an agricultural imple- 
ment; or some art, like that of iron or steel manufacture, or the 
use of motive power, upon which great industries are found- 
ed in all civilized lands. The remark also hold3 good when 
the invention refers to some staple product of some particu- 
lar region; for instance, an improvement in smelting the ores 
of mercury would be valuable in Spain and Austria ; an im- 
provement in the production of wine or the manufacture of 
sulphur or straw hats in Italy; or any improved treatment of 



TATKNTri AND TRADE-MARKS. 23 

sugar, coffee, or tobacco, or putting up drugs, in Brazil. As 
a rule, however, it may be safely said that (our own country 
being so varied that almost any section may have a counter- 
part abroad either in natural or artificial products) an inven- 
tion worth patenting at home will be worth the expense of patent- 
ing in one or more foreign countries. Letters patent in the 
United States, Canada, Great Britain, France, Belgium, Italy, 
and Russia secure in the aggregate a monopoly ranging from 
a ten years' term upwards, among two hundred and thirty 
millions of the most active and progressive people on the 
globe. It should be also borne in mind that, although the 
fees are higher for foreign than for American patents, no 
models are required; and in many cases, a foreign application, 
if skilfully prepared, may be made to embrace as much as two 
or three or even more are permitted to cover in this country. 
For most classes of American inventions, however, it is usual 
to secure foreign patents in England, France, and Belgium, 
which have collectively a population of upwards of eighty-five 
millions, and, with our own country, are foremost in the 
ready adoption of new improvements. The expense of taking 
out patents in these three countries is, for England, $300, 
France, $100, Belgium, $100, or a total of $500. These 
charges are in gold, and cover all expenses except the taxes 
levied at intervals during the life of the patent. 

Foreign patents require the utmost care in their preparation, 
as no provision is made, as in our American law, for rectify- 
ing mistakes by reissue, etc. It is also desirable that the ap- 
plication should be made as early as possible; for there are 
always unprincipled persons ready to seize upon a valuable in- 
vention as soon as it is made public here, and patent it abroad, 
in defiance of the rights of the inventor or American owner. 



Canadian Patents* 

Under the new Canadian law, patents are granted to citizens 
of the United States on the same conditions as to native 
Canadians. The application is subjected to examination in a 



24 PATENTS AND TRADE-MARKS. 

manner analogous to that of the U. S. Patent Office. A 
patent can be obtained on an invention already patented here, 
provided the application is made within one year of the issue 
of the American letters-patent. Patents are issued for terms 
of five, ten, and fifteen years, as the applicant elects ; the ex- 
penses, including Government, agency, and incidental fees, are 
$75, $95, and $115 respectively. A patent issued for one 
of the shorter terms may be subsequently extended to the 
full term of fifteen years, if desired. It is better, however, to 
secure the long term in the first place, as each extension 
will cost about $50. A model is required, but, when pre- 
ferred, this need not be furnished until the application is al- 
lowed. Through this agency, Canadian applications, like all 
other cases, home and foreign, are pushed forward with as 
little delay as possible, being commonly ready for mailing 
within four days of their entry on my books. 



British Patents, 



A patent in Great Britain includes England, Scotland, Wales, 
Ireland, the Channel Islands, and the Isle of Man. Generally 
any invention capable of successful introduction here will find a 
market, if managed rightly, among the forty millions of popula- 
tion of Great Britain. The term of the patent is fourteen years. 
The total cost is $300 gold. This may, if the applicant wish, be 
paid in two instalments, securing "provisional protection," and 
the remaining $200 be paid within three and one-half months, 
to secure the sealing of the patent, It is preferable, how- 
ever, to file the specification complete, for the reason that 
the crown officers have decided that such an application will 
take precedence, in case of interference, of a provisional pro- 
tection on the same invention. When the patent is three 
years old, a Government tax of £50— about $250— is levied 
upon it ; and, at the end of the seventh year, another of 
£100. The purchaser of the parent assumes the payment of 
these dues. The patentee is not required to work his inven- 
tion within any specified time in Great Britain. 



PATENTS AND TRADE-MARKS. 25 

French Patents. 

Patents are granted in France for a term of fifteen years ; 
the invention mnst be worked within two years of the 
date of the patent ; and an annual tax of $20 must be 
paid. If these conditions are not complied with, the patent 
is rendered invalid. France has a population of forty mil- 
lions, and is noted for the number and variety of her arts 
and industries; but many of the processes are carried on by 
manual labor, which must eventually give way to ingenious 
machinery, of which, moreover, whether invented at home or 
abroad, French manufacturers have always shown a strong 
appreciation. A French patent costs $100 gold. 



Belgian Patents. 

Little Belgium has a population of only five millions, but 
is the industrial hive of Europe, and shows manufacturing 
systems equal to any in the world. To such an extent is this 
the case that the agents of Belgian houses compete for trade 
with English manufacturers in Birmingham and Sheffield 
itself — a result due entirely to the wise administration of an 
efficient patent law. 

The expense of a Belgian patent is $100 gold. The term 
of the patent is twenty years. There is an annual tax — $2 the 
first year, and increasing $2 — annually until the patent expires ; 
if the tax is not paid within six months from the time it 
falls due, the patent is forfeited. 



Italian Patents.* 



In Italy, patents are granted for periods ranging from one 
year to twenty; if for less than five, the invention must be 
worked within twelve months ; in all other cases, within two 
years. The recent enlargement of the territory held under 
the Italian Government has brought about seven millions of 




26 PATENTS AND TRADE-MARKS. 

people under its control. Many of the arts have been in a 
backward state, but it is probable that, under the more 
favorable conditions now existing, greater progress will be 
made. This has of late led inventors to look much more favor- 
ably upon Italian patents than was formerly the case. The 
cost is $200. 



Hussian Patents. 



A reliable foreign authority speaks as follows of Russian 
letters-patent, etc. : 

" The Russian Empire of eight million square miles and eighty 
million of inhabitants, presents to patentees one of the most pro- 
mising fields in the Old World. An active public sentiment ex- 
ists in favor of new inventions and manufactures ; the patentee 
is well secured in his rights, and the policy recently inaugurated 
cannot fail to give a fresh impetus to trade, and cause a great 
demand for inventions. 

"The practice of the departments has been modified by a 
recent decree of the emperor. It is stated that letters-patent will 
issue under this practice several months earlier than under the 
old system. The field being unoccupied, inventors rarely find 
their inventions anticipated, and refusals are rare exceptions." 

In Russia, any invention is new in the eyes of the law unless it 
has been previously publicly known in the Empire. An inven- 
tion patented in any other country may be patented in Russia at 
any time during the existence of the foreign patent, unless the 
invention has been publicly worked in Russia. Letters-patent 
may also be obtained for the mere introduction or importation of 
any improvement not previously publicly in use in that country. 

Patents in Russia are granted for three, five, and ten years; 
but commonly it is worth while only to secure the latter or 
longer term, as there is no provision for any extension of the 
original period. The cost, including agency fees, is, for three 
years, $300, five years, $450, ten years, $600. It is well known 
that American engineers and inventors have met with special 
favor in Russia. 



PATENTS AND TRADE-MARKS. 27 

Swedish Patents. 

Patents are granted in Sweden for terms varying from three 
to fifteen years, and inventions must be worked within 
periods determined by the Government, and varying from one 
to four years, although two years is the time ordinarily al- 
lowed. The total cost is $180 gold. 



Norwegian Patents. 



Patents are granted in Norway for terms not exceeding ten 
years, and the invention must be worked within two years of 
the date of the patent. The expense is the same as in 
Sweden. 



Danish Patents. 



In Denmark, patents are granted by the crown on the 
recommendation of certain officials, and for terms extending 
from three to twenty years. The cost is $125 gold. 



Note. 

The three Scandinavian countries, Sweden, Norway, and 
Denmark, afford excellent opportunities for the introduction 
of machinery and processes for iron and steel manufacture, 
ship-building, etc., as well as to improvements relating to 
fisheries, wood- working, and many other industries largely 
practised in the North of Europe. 



PoR TU& I r ESE Pa TENTS. 



Patents in Portugal have a duration of five years, and 
must be worked within two and one-half years of the date 
of the grant. The total expense is $250 gold. 



28 PATENTS AND TRADE-MARKS. 

Spanism and Cub ax Patents. 

Spain grants patents for periods of five, ten ; and fifteen 
years. The cost, all fees included, are $250, $450, and $550 
respectively, according to the duration of the patent applied 
for. 

Patents for the island of Cuba are granted separately from 
those of Spain ; the duration may he for the same periods as 
in the last-named country. The cost, covering everything, is 
$250 for a five years' patent, $350 for ten years, and $550 
for fifteen years. 



Pr us si a n Pa tents. 



The great objection to the Prussian Patent Law is the 
short term of the grant — only five years — and necessity of 
working the invention within six months from the issue of 
the patent, although in some cases an extension of this last 
can be obtained. Prussia has an active and intelligent popula- 
tion of twenty- eight millions ; her manufacturing interests are 
progressive, and, in some departments of invention, especially 
where the inventor has friends or agents that can aid him in 
the rapid introduction of his improvement, a Prussian patent 
is well worth the cost ; this, all expenses included, is $100. 



Patents in Austria and Hungary. 

These two countries, having a population of thirty-eight 
millions, are included in one patent, issued for a term of 
fifteen years. The law requires that the invention be worked 
within one year. The application costs entire $150 ; and a 
light tax not exceeding, during the first five years, ten dollars 
annually must be paid. 



Other German States. 



In a number of the minor German states patents can be 
obtained for $100 or thereabout for each state. It should be 



PATENTS AND TRADE-MARKS. 29 

borne in mind that there is a prospect that a uniform patent 
law will be adopted for the entire German Empire. In this 
case, provision will doubtless be made to extend over the 
whole a patent previously secured in one ; just as in Canada, 
patents obtained in New Brunswick were, on the fulfilment of 
certain formalities, made good throughout the Dominion. 



Patents in the British Colonies. 

Each British colony has its own system of patent law, but 
in each the duration of the patent is fourteen years. The cost, 
agency fees included, for the colonies of Victoria, New 
Australia, New South Wales, and Queensland, is $300 each : 
for New Zealand, $200 ; and for British India, $400. In the 
last named, the invention must be practically introduced with- 
in two years. 



Patents in South America. 

To secure patents in the various states of South America 
involves considerable trouble and expense ; but there are 
many processes for preparing tropical products and many 
kinds of machinery, especially those designed for bringing raw 
material into merchantable form, that with energetic manage- 
ment could be introduced into those countries with great 
profit. South American patents are so exceptional in their 
character that special arrangements must be made in every 
case to protect the interests of the inventor. 



Office of C. T. Raynolds & Co, ) 
106 and 108 Fulton St., > 
New York City, July 9, 1873. ) 
J. A. Whitney, Esq. : 

Dear Sir: It is with pleasure I acknowledge the prompt 
and efficient manner in which you have conducted business 
for me at the United States Patent Office. i" must also ex- 
press my special satisfaction with your management of my 
foreign business. The British and French applications wore 



30 PATENTS AND TIIADK-MAUKS. 

forwarded with the least possible delay, and were urged with 
the greatest despatch, and, on examining the documents, I 
find them all that could be desired. You have my best 
wishes for your continued success. 

Yours truly, 

L. Richardson, 

of C. T. R. & Co. 



Note. 

All fees for foreign patents are payable in gold or its 
currency equivalent. Attention is called to the fact that in 
this agency applications are made out and forwarded without 
loss of time, ordinarily within four days of the receipt of the 
case. 



Trade-Marks. 



" Seals and emblems of ownerships were coeval with the 
birth of traffic." Pottery dug from the ruins of Assyrian cities 
has the imprint of the factor's stamp, and bricks from the 
temple foundations of Nineveh and Egypt are impressed with 
the symbol of their makers. In all civilized lands, and in 
all ages, the producer of an article of trade ha3 placed 
his own mark upon it so that it might be known as his by 
all purchasers. From this came the term trade-mark. The ex- 
clusive right to a trade-mark is protected at common law, 
but it has been found necessary in our own and other coun- 
tries to extend further protection by special statute. 

Any one can obtain property in a trade-mark, provided he 
is the first to apply it to any given article or class of 
products, and provided also that such article or product is 
actually one of trade or traffic, whether it be a newspaper, 
box of baking-powders, steel plow, medicine textile fabric, 
or anything else. The fact that a certain mark has been 
adopted by one party for one kind of products does not pre- 
vent another from taking the same device as a trade-mark 
for a quite different thing. Thus, a mark previously used 
by a manufacturer of mowing-machines could be legitimately 



PATENTS AND TRADE-MARKS. 31 

appropriated by another for steam-engines, and by a third for 
bar-iron or steel. 

A trade-mark secures to a manufacturer the advantage of 
whatever reputation he may gain through the superior excel- 
lence of his wares, whether in point of quality or cheapness. 
Thus trade-marks are often very valuable ; they carry with 
them practically the good-will of the business in the articles 
to which they relate.* 



American Trade-Marks. 

In this country, the registry of a trade-mark at the Patent 
Office affords protection for a period of thirty years, unless 
foreign registry shall expire at an earlier date, the same rule 
being followed in this case as with patents. But even after 
the expiration of this term, the trade-mark will still hold 
good at common law, and the date of registry will be proof 
of long user, and exclusive proprietorship. 

As our Trade-mark legislation is of recent date (July 8, 1870), 
the special procedure requisite to secure complete Govern- 
ment protection has been and still is unfamiliar to many 
agents experienced more or less in ordinary patent practice. 
In making the application, the applicant invites the exam- 
ination of the case upon its merits, and the query quite 
frequently arises whether the device claimed can be properly 
or legally adopted as a trade-mark. In meeting the objections, 
if such should occur, "sometimes a course of special pleading 
is pursued, until the essential questions are met. The ap- 
plication papers serve as a declaration, in lack of defence to 
which (by the office) the claim is passed for issue. He who 

* This has always been the case even before statute law was invoked to 
aid the common law in guarding property in trade-marks. An eminent 
authority says of the famous manufacturer, Wedgewood" "He produced 
many fine pieces of work. By means of his symbol, he secured a full 
reward for his industry, his toil, his genius. He could safely rely on 
this trade-mark to point out to the people of all countries the goods in 
which lie so successfully combined the useful, tin- ornamental, and the 
ingenious.'' 1 It is safe to say that there are hundreds of trade-marks in 
exister.ee in this country worth from ten thousand to live hundred thou- 
sand dollars each. 



32 PATENTS AND TRADE-MARKS. 

has made himself familiar with the science of special pleading 
at common law — little studied nowadays for practical use as 
an aid to mental discipline, and as a system of logical dissolu- 
tion of the issues of a strictly legal controversy — will have an 
advantage/'* 

Office of the Iron Age, 

A Weekly Review of the Hardware and Metal Trades, 
David Williams, Publisher, 

80 Beekman Street. 
James A. Whitney, New York : 

Dear Sir : Allow me to thank you for the entirely satisfac- 
tory way in which you procured the registry of my trade- 
mark. I am particularly pleased with its being allowed with- 
out any amendment in the specification, which was, in my 
opinion, very ably drawn. I shall take pleasure in recom- 
mending your agency to others desiring to have their trade- 
marks protected. 

Yours very truly, 

David Williams. 



Foreign Trade-Marks. 

To be valid in other countries, trade-marks must be 
registered according to the laws thereof ; in all cases where 
manufactured, articles are likely to find a market abroad, 
foreign trade-marks on them should be secured. 



Canadian Trade-Marks. 

The Canadian ' f Trade-mark and Design Act of 1868" is ex- 
tremely liberal in its protection of trade-marks and industrial 
designs, as well as severe on infringements upon the same. 
Registry must be made in the department of the Minister of 
Agriculture, who has general charge of affairs relating to patents, 
etc., for the Dominion. The cost, agency fees included, of 
securing a trade-mark in Canada is $25. 

* William H. Brown's "Treatise on the Law cf Trade-marks," § 571. 



PATENTS AND TRADE-MARKS. 33 

A USTRO-HUNGARIAN TRADE MARKS. 

Americans are privileged to secure their trade-marks in 
Austria and Hungary by virtue of the convention proclaimed 
June 1, 1872. Duplicate copies of these marks must be 
placed on record in the Patent Office at Washington, and 
in the Chambers of Commerce and Trade in Vienna and 
Pesth. The total expense of securing a trade-mark in the 
Austro-Hungarian Empire is $50 gold. 



Belgian Trade-Marks. 

The treaty of July 17, 1858, enables Americans to obtain 
Government protection on their trade-marks in Belgium the 
same as at home. The trade-mark must be recorded in the 
office of the Tribunal of Commerce in Brussels. Expenses, in- 
cluding agency fees, $40 gold. 



French Trade-Marks. 



The protection of United States trade-marks in France rests 
upon the provisions of the treaty made between the two 
countries April 16, 1869. The proceedings are essentially 
the same as in Belgium. Total cost, in gold, $45. 



G erman Tra be- Ma r ks. 



The Treaty with Germany, dated June 1, 1872, allows citizens 
of the United States the same protection on Trade-marks that 
is accorded to those of the German Empire. The expense 
varies from $40 to $60 gold. 



3 i- PATENTS AND TRADE-MARKS. 

Russian Trade-Marks. 

On January 27, 1808, an article additional to a former 
treaty with Russia provided for reciprocity in trade-marks, 
which, in the latter country, are protected by Government 
registry at St. Petersburg. The total cost of a Russian 
trade-mark is $55 gold. 



British Trade-Marks. 



In England, the '/Merchandise Marks Act" of 1862 fully 
provides for the punishment of infringement on trade-marks, 
but makes no provision for registry. The date of a trade- 
mark — often an important matter — may, however, be put on 
record by entry at Stationers' Hall. The cost of this, in gold, 
is $35. 



Note. 

In designing a trade-mark, it is best to make it as strik- 
ing and simple as possible, whether by coining a new word, 
adopting some device previously used for a different class 
of products, combining a word or name and a pictorial em- 
blem, or providing a figure or symbol wholly new. As pre- 
viously remarked, the value of a trade mark is frequently 
very great, and products largely advertised or meeting with 
profitable sale should always be protected by them in all 
countries where either a present or prospective market is 
to be found. 






The Business of an Expert. 

When by diligent study of the theory, and by mature expe- 
rience in the practice of any business or profession, a person 
has become thoroughly familiarized with all its details, that 
person becomes an expert in the same, and his opinion on 
any given subject connected therewith has a value propor- 
tioned to the study, experience, tact, earnestness, and energy 
of the practitioner. In patent business, the work of an 
expert is divided into several different but collateral branches, 
such as examining letters-patent to ascertain whether in every 
respect they are in proper form ; determining the probabilities 
of infringement ; giving evidence in patent suits ; and search- 
ing technical and scientific records. 



The Examination of Patents, 

to ascertain whether they are properly drawn or not ; 
whether the description tallies with the claims ; whether 
the claims are definite enough to particularly designate the 
invention, or broad enough to embrace the whole ; and gener- 
ally whether there be anything in the form or substance of 
the specification to narrow or invalidate the patent — all this is 
important in view of any legal proceedings present or likely 
to occur. Every patentee should be sure that his letters- 
patent are inoregnable before subjecting them to the scrutiny 
of a court. 



Examination as to Real or Alleged 
Infring ement. 

The question of whether one invention infringes upon 
another is frequent and important, but can commonly be de- 
cided by a careful comparison of the device alleged to in- 
fringe with that described in the letters-patent. Quite often 



36 PATENTS AND TRADE-MARKS. 

the solution of the matter turns on the query whether one 
element of a combination is the mechanical equivalent of an 
apparently modified element of a combination claimed to be 
different. To determine this requires the exercise of sound 
scientific and mechanical judgment, and a knowledge of 
what the judicial authorities of this country and of Great 
Britain ( which latter furnishes many of the precedents fol- 
lowed in American jurisprudence) have decided in cases of 
this character. 



Testifyixg before the Covets. 

As to whether a specification describes an invention with 
sufficient clearness to enable a person skilled in the art to 
put the improvement into practice, and whether one device is 
substantially the equivalent of another, are questions of fact 
for the jury, and must be decided on the testimony of ex- 
perts. To form a reliable aud conscientious judgment in a 
case involving these issues, the expert must make it the sub- 
ject of special study, and render to his client a sincere 
opinion; and, if it be favorable to the claims of his client, 
he is commonly called to express it upon the witness-stand, 
where he must be able to give the reasons for his opinion, 
without being disturbed by cavils of counsel on the opposite 
side. If the opinion should, in the first instance, be unfavora- 
ble, it is, as w r ith counsel in other cases, the duty of the 
expert to honestly advise his client of the best methods of 
rectifying mistakes, of retaining whatever rights he may 
justly possess, and of avoiding unnecessary risk and expense 
in the future management of his interests. 



INVESTIGATION IX P ATE XT AXD OTHER RECORDS. 

In many cases, it is desirable to ascertain to what extent, 
if any, inventors have been anticipated in past times. Such 
an investigation involves diligent search in the patent records 
of this and other countries ; in old technical publications, 






PATENTS AND TRADE-MARKS. 37 

and published accounts of industries. Such examinations, to 
be of any value at all, must be most thoroughly conducted, 
and, when this is the case, often secure the most important 
results to patentees and manufacturers. 

The fee for expert business must in each particular instance 
depend upon the extent and character of the labor involved. In 
this agency, the client receives in all cases the most diligent and 
earnest effort in his behalf, and charges are in no case ex- 
cessive. 



Opinions of the Press. 



"As announced in a recent number of the Telegrapher, Mr. 
James A. Whitney, who has for several years edited the 
American Artisan, has retired from that position. Mr. 
Whitney is the President of the New York Society of Prac- 
tical Engineering, and is intimately associated with the 
mechanical and engineering interests of the country. He has 
opened an office at No. 128 Broadway, in this city, and offers 
his services in securing American and foreign patents, as an 
expert in patent suits, in conducting investigations in En- 
glish, French, and American industrial records and technical 
publications, in examining and reporting upon new processes 
and machinery, in designing apparatus for industrial uses. 
We take pleasure in commending Mr. Whitney to those 
who may have occasion to avail themselves of his services. 
His experience as an editor of an industrial organ, and his 
familiarity with mechanical and technical matters, peculiarly 
qualify him for his new business, and we have no doubt but 
those who may confide their interests to him will find it to their 
advantage to do so." — The Telegrapher, Neio Tori; JmiQ 8, 1872. 

"Prof. James A. Whitney has established an office as expert 
and patent solicitor at No. 128 Broadway, this city. We com- 
mend this new patent agency to our friends, because we know 
that all business entrusted to Prof. Whitney will be promptly, 
carefully, and conscientiously attended to ; while his long, 
varied, and practical familiarity with inventions lias eminent- 
ly fitted him for his vocation. Ho has not only edited 



38 PATEMS AND TRADE-MARKS. 

a technical j >urual for years to the satisfaction of the engi- 
neering public, but has prepared hundreds of specifications 
for patents, and has worked with his own hands in the 
machine-shop and the draughtsman's office. Inventors may 
therefore depend upon finding him in full accord with their 
interests, and posted up in all that is needed in the securing 
of full protection for their improvements. — American Gas-light 
Journal, New York, June 17, 1872. 

" Mr. James A. Whitney has dropped the pen and become an 
expert in patent cases and consulting engineer. He has opened 
an office at 128 Broadway, where he will apply his varied 
and extensive professional experience in the manner above 
indicated. Those who may have occasion to consult him 
will find him thoroughly conversant with the patent law, 
engineering, chemistry, machinery, and all things connected 
with the industrial arts." — The Phrenological Journal, New 
York, July, 1872. 



Engixeerixg. 



In this office, the engineering department is confined strictly 
within the limit3 found advantageous to inventors and 
patentees. In many cases, investigations in certain departments 
of applied science are necessary, in order to ascertain the 
probable value of a new process, article of manufacture, or 
machine. In others, calculations and working drawings are 
required. In others still, careful statements formed on scientific 
and engineering data are called for to aid in bringing a novel 
improvement to the favorable notice of the public. 

As the work may vary from a simple tracing to working 
drawings requiring weeks in their execution, and from a brief 
statement of fifty written lines to an elaborate pamphlet of a 
hundred and fifty printed pages, the fee in each case must 
depend upon the skill and labor involved in its preparation ; 
but the charges will always be found reasonable and pro- 
portioned to the actual outlay of time and technical experience 
involved. 



PATENTS AND TRADE-MARKS. 39 

From the American Railway Times (Boston), 
June 8, 1872. 

"Mr. Whitney is a thorough mechanical engineer, with a 
valuable practical experience in the machine-shop, and, 
from his long connection with the editorial profession, is 
thoroughly familiar with the industrial and mechanical pro- 
gress of the country, as well as with the details of improve- 
ments in every department of construction. He likewise has 
had a valuable experience in the preparation of patent spe- 
cifications ( several hundred of which he prepared while in 
the Artisan office). As President of the New York Society 
of Practical Engineering he has been distinguished for his 
intelligent labors in forwarding the objects of that society, 
and by education and practice unites all the requisites for 
success. We take pleasure in most cordially recommend- 
ing his services to our readers, knowing that whatever he 
undertakes will be conscientiously attended to." 



What Constitutes Infringement. 

From the beginning of industrial art, inventors have been 
open to the attacks of pirates seeking to appropriate to them- 
selves the hard-earned profits of patentees. A few decisions 
of the United States courts, on the question of what con- 
stitutes infringement, will be of interest in this connection. 

As long ago as 1809, the meaning of the statute was clearly 
defined by Justice Washington, of Pennsylvania, in the case of 
Evans vs. Weiss, as follows : " The general law declares that 
the right to a patent belongs to him who is the first inventor, 
even before a patent is granted ; therefore any person who, 
knowing that another is the first inventor, yet doubling 
whether that person will ever apply for a patent, proceeds to 
construct a machine so invented by another, acts at his peril, 
and with the full knowledge of the law that a subsequent 
patent may cut him out of the use of the machine thus erect* 
ed." In 1813, Justice Story (Sawin vs. Guild) decided that, to 
" constitute an infringement, the making must be to infringe 



40 PATENTS AND TRADE-MARKS. 

tlie patent-riglit, and deprive the owner of the lawful re- 
wards of his discovery." The essence of infringement was 
the following year stated by the same authority in the case 
of Odione vs. Winkley, as follows: "In an action, the first 
question for consideration is whether the machines used by 
the defendant are substantially in their* principle and mode 
of operation like the plaintiff's. If so, it is an infringement 
to use them." 

The principle of an invention must be inferred from the 
claim. In the case of Sickles vs. the Globe Manufacturing 
Company, Justice Grier decided that "the question of in- 
fringement has reference to what the patentee has claimed 
in his patent, and not to what he m,vjht have claimed if his 
specification had been more skilfully prepared." The absolute 
necessity of having specifications and claims drawn with the 
utmost care is poiired'y indicated in this dictum from the 
Supreme Bench of the United States. 

In the suit of Rich vs. Lippincott, Justice Grier also stated 
that "an infringement takes place wherever a party avails 
himself of the invention of a patentee, without such a varia- 
tion as will constitute a new discovery." In Sickles vs. 
Borden, Judge Nelson said: "Mere formal changes will not 
evade a patent." Justice Ingersoll, in Imlay vs. Nor. and Wore. 
Bailroad Company, 1858, laid down the rule, recognized, 
how T ever, long before, that "it is none the legs an infringe- 
ment of a patent because something is added to the means 
patented, even though the object or result secured by such 
other means in connection is better accomplished." 

On the other hand, Justice Story, in Whittemore vs. 
Cutter, 1813, decided that "the making of a patented 
machine merely for philosophical experiments, or for the 
purpose of ascertaining the sufficiency of the machine to pro- 
duce its described effects, is not an infringement of the 
patentee's rights." 

During the same year, Justice Washington decided, Aiken 
vs. Bemis, that "if the machine used by the defendant 
differs materially from that described in the patent, there 
is not an infringement." But this dictum must be received 
with caution. In the case cited, the patentee described a saw- 
set constructed of wrought -iron with steel faces ; he having 



PATENTS AND TRADE-MARKS. 41 

previously tried the saw-set made wholly of steel, and thrown 
it aside because of its liability to fracture. Subsequent- 
ly another inventor made the same set according to the 
abandoned plan, and found it successful. The saw-set was 
"patented, and this without making the specification in terms 
broad enough to cover steel also/'* This is another example 
of the mischief done by carelessly written specifications. 
Had the inventor claimed a " saw-set constructed with steel 
faces operating substantially" as set forth in the descriptive 
portion of his specification, no plea of ; ' improvement in the 
principle " would have availed the infringers. (See ante: the 
principle must be inferred from the claim.) 

In Kidd vs. Spence, Ingersoll, J., decided that "a patent for 
making bonnet-frames was not infringed by simply making 
the crown of a bonnet without the tip. A bonnet-frame in- 
cludes both the crown and the tip." This, again, seems to 
have hinged upon an inherently defective specification. As- 
suming the novelty to be the same as concerns severally 
both crown and tip, a specific claim should have been made 
to each, and a third clause could have covered the two fea- 
tures in combination. The making or using of either feature 
would then beyond a doubt have constituted an infringe- 
ment. 



Construction of Models. 

The Patent Office requires a model in every case where 
the invention admits of representation in this manner. This 
is an onerous tax on inventors, and it is to be hoped that 
in time a more enlightened and liberal policy will prevail. 
But while the rule stands, it must be obeyed in good faith, 
and the best method of constructing models so as to secure 
all the purposes of the office, and at the same time avoid 
undue expense to the inventors, is a matter of considerable 
moment. A model should fully represent the improvement 
claimed; it should be durable; it should be put together 
in a substantial manner, and neatly finished ; when possible, 
it should be a working model. These conditions fulfilled, it 

* Ilobb's ll Patent Cases," 1851, vol, 2, p, 660, 



42 PATENTS AND TRADE-MARKS. 

ia good enough. Finely finished brass-work and carefully 
polished surfaces are quite unnecessary. As a material, in 
many cases, wood is much cheaper than metal, and answers 
every purpose quite .as well, especially if the gears and 
smaller parts are made of boxwood. Copper softened by 
annealing in the fire will form in a model those parts that 
would require wrought-iron in a full-sized machine. Other 
parts which the professional model-maker would cast in brass, 
and afterwards file slowly into shape, may be made of an 
alloy of lead and tin, or of block-tin alone. Both the alloy 
and the last-named metal melt at comparatively low tempera- 
tures, and may be cast into rough shapes in moulds cut in 
pine or basswood. These rough shapes may then be trimmed to 
the size and form required by the use of a half- worn chisel or 
gouge, as the case may require, and be finished by the dexter- 
ous use of a pocket-knife. Models of firearms, cider-mills, 
mowing-machines, motive power, and many other things, have 
been made in this manner of soft metal, and have fulfilled all 
the requirements of the Patent Office. But it must be observ- 
ed that it is absolutely necessary that the model should 
represent accurately the entire invention claimed, and should ' 
be strong enough to bear considerable handling. 



Copyrights. 

Section 86 of the act of 1870 enacts " That any citizen of 
the United States or resident* therein who shall be the 
author, inventor, designer, or proprietor of any book, map, 

*The residence mast be permanent. "A person temporarily residing 
here, even though he has declared his intention of becoming a citizen, 
cannot take and hold a copyright 1 ' (see Carey vs. Collier, 56 Niles 1 register, 
262). 

"One who gets others to compile a work or engrave a print is not en- 
titled to a copyright " (Pierpont vs. Powle, 2 Wood & Min M 46). 

11 The assignee of a work composed by a non-resident alien cannot take 
a copyright for it " (Keene vs. Wheatley, 9 American Law Register, 46). 

" Under the copyright act of 1831, the legal a^s'gnee of the author 
may take out the copyright, and it will make no .difference whether he 
hold it as trustee for another or not" (Little vs. Gould, 2 Blatch., 366). 

" Copyrights shall be assignable in law " (Vet of 1870), 



PATENTS AND TRADE-MARKS. 43 

chart, dramatic or musical composition, engraving, cut, 
print, photograph or negative thereof, or of a painting, 
drawing, chromo, statue, statuary, or models or designs in- 
tended to be perfected as works of the fine arts, and his 
administrators, executors, and assigns, shall, upon complying 
with the provisions of this act, have the sole liberty of 
printing, representing, publishing, completing, executing, 
finishing, and vending the same; and, in the case of a dramatic 
composition, of publicly performing or representing it, or 
causing it to be performed or represented by others ; and 
authors may reserve the right to dramatize or translate 
their own works/' 

Copyrights are granted for a term of twenty-eight 
years, and may be extended fourteen more. It will be 
seen from the foregoing that a copyright covers almost 
every product of mechanical skill and originative talent 
that is not embraced by patents proper, design patents, and 
trade-marks. The proceedings involved in securing a copy- 
right are comparatively simple, but the rules and regulations 
must be observed to the very letter, or the copyright is forfeited 
to the public. The total expense is from five to fifteen dollars, 
according to tfke nature of the subject to be protected, which 
amount should be sent with the title-page (before publication) 
of the work, if it be a book; or copy or photograph, with full 
description (before sale or public use), if coming within the 
other designations indicated. 



Assignments and Zicenses. 

Section 36 of the act of 1870 provides that every patent 
or any interest therein shall be assignable in law by an in- 
strument in writing ; and the patentee or his assigns or legal 
representatives may, in like manner, grant and convey an 
exclusive right under his patent to the whole or any specified 
part of the United States ; and said assignment, grant, or 
conveyance shall bo void as against any subsequent purchaser 
or mortgage for a valuable considertfuon, without notice, 
unless it i* recorded in the Patent Oilice within three months 
of the date thereof." 



44 PATENTS AND TRADE-MARKS. 

An assignment may be made before or after the issue 
of the patent, or before the application for a patent If in 
such event the patent should issue to the inventor, the title 
would still rest in the assignee. In some cases where the 
inventor has been employed and paid for devising or perfect- 
ing an invention, the implied contract will pass the title to 
the employer as assignee ; under circumstances other than this, 
an employer has no claim whatever upon inventions made 
by persons in his employ. 

"An assignor cannot, after assignment, impeach the title of 
his assignee " ( Wilson vs. Serger, Lewis's Digest, 158). 

In order to protect the interests of the inventor, it is best 
to have licenses, permitting the practice of the invention 
under certain restrictions, so drawn as to prevent the licensee 
from afterwards disputing the validity of the patent. The 
ordinary forms are not sufficient for this. The greatest atten- 
tion to details are necessary in all instruments transferring 
rights in letters-patent, and the point just indicated is worthy 
of note by all concerned. 

Joint owners of a patent, i.e. owners of undivided in- 
terests, can act independently of each other, and are not 
obliged to account to each other for profits, etc. To secure 
equity in such cases, their relative status should be clearly 
defined by written agreements. 

The query whether an agreement to assign all subsequent 
improvements, i.e. inventions not yet devised, will hold good 
in law, is often asked, and the answer is at best doubtful. 
The authorities cite the case of Nesmith et al. vs. Calvert et al. 
(1 Woodbury & Minot, 3-i), as showing that "a contract may 
be made to convey a future invention as well as a past one, 
and for any improvement or maturing of a past one." But 
this seems the conclusion of the person who made the digest 
rather than that of Justice Woodbury, who gave the decision ; 
for the invention in dispute was one that had already been 
suggested when the contract for future assignment was 
made. " The change was rather a further progress in the same 
machine than inventing a new one ; was maturing its form 
without introducing any new principle." The bill averred 
distinctly that the improvements in dispute were contemplat- 
ed at the time the contract was drawn, and, in view of proof 



PATENTS AND TRADE-MARKS. 45 

to this effect, tlie court decided that the improvements were 
in law assigned by the contract. The conclusion from this case 
is that improvements shown to actually exist in the mind of 
the inventor, and relating specifically to the invention forming 
the basis of the agreement, may be covered by the latter. 
To go farther than this would conflict with the old common 
law maxim that one cannot sell what has no existence. A 
contract not to invent would be void as prejudicial to the public 
welfare. 



Decisions of the Courts. 

As the number of patented inventions becomes greater, many 
novel points of law are brought up in decisions of the courts, 
and thus, from time to time, disputed questions are decided. 
Room can be afforded here only for brief mention of a very 
.few of the numerous matters of interest to patentees thus 
passed upon, but the following are worthy of note by those 
most concerned : 

It is an acknowledged principle that, when several parts 
are claimed in combination, the omission of any one of these 
parts will avoid the claim. But there are instances in which 
the strict observance of this rule would manifestly work 
injustice. Such an one was involved in the case of Renwick, 
et at. vs. Pond, tried before Judge Blatchford, June 2, 1872, 
and the nature and result of which may be inferred from the 
abstract of the decision arrived at on one of the points, viz. : 
" A claim for an arrangement and combination of which a car- 
tridge is a part might be infringed simply by selling a fire- 
arm capable of being and designed to be used to effect the re- 
sult of the patent by the means specified, and requiring only 
the addition of the cartridge by the purchaser." An infringer 
sometimes attempts to avoid a penalty by leaving the patent- 
ed article somewhat incomplete, with the intention thai the 
purchaser supply the deficiency; but, as shown by the forego- 
ing, the law justifies nothing of the kind. 

Another plan sometimes attempted by infringers is that 
of causing some irresponsible party to carry on the manufac- 
ture, and then pretending to purchase the patented product. 






46 PATENTS AND TRADEMARKS. 

In prosecuting an infringement of this character, it is absolute- 
ly necessary to prove actual collusion between the parties ; but, 
when this is done, the scheme will fail to protect the real in- 
fringers, as witness the following from the decision of Nelson, 
J , in the celebrated case of Tatham vs. Leroy, tried in 1849 : 
"If the agreement was only colorable and entered into for 
the purpose of securing the profits of the business without 
assuming the responsibility for the use of the invention, then 
they would be liable. Aiding and assisting a person in carry- 
ing on such a business and in operating the machinery will 
implicate the parties so engaged."* 

It frequently occurs, with patents of unusual merit and value, 
that a combined opposition is organized by infringers, which 
results in much litigation and consequent inconvenience and 
loss to the owners of the patent. Although there is no 
statute forbidding this, its tendency is decidedly against 
equity. Judge Story, in Woodworth vs. Shearman, in 1844, 
said that 4 ' it would seem that a combination of a number of 
persons to resist a patent approaches very near, if it does 
not actually reach, a criminal conspiracy."! 

In the recent case of Black et al. vs. Thorne et al. (relating 
to the patent of Moses Thompson for burning bagasse and 
wet fuel), Judge Blatchford held the combined resistance by 
the tanners to the patents to be a tribute to the value of the 
inventions, and declared himself "unable to resist the conclu- 
sion that the plaintiffs have fully established their case.":): 

In the suit of Draper vs. Hudson, before Shepley, J., March 
1, 1873, the principle (settled, however, by previous dicta) was 
laid down that "a patent for an article of manufacture can- 
not be sustained on the ground that it was fabricated by 
new and improved machinery ; it must be a new and improv- 
ed thing itself, possessing novelty of its own, independent of 
the devices, processes, or arts by which it is produced." In 
this instance, what was claimed as a new article of manufac- 
ture was a "type-block" for hand-stamps, etc., differing in no 
essential respects from those previously made by other 
methods. The patent was therefore held to cover only the 

* "Law's Digest,' 1 p. 371. t 3 Story, 172. 

X "Official Gazette," vol. ii. p. 392. 



PATENTS AND TRADE-MAKKS. 47 

machine or means whereby the devices were fabricated. Had 
the devices themselves been new and useful, there can 
be no doubt that they would have constituted valid subject- 
matter for a separate and independent patent. 



0" 



THE 



LAW AND PRACTICE 



CONCERNING 



PATENTS AND TRADE-MARKS 



(AMERICAN AND FOREIGN). 



DIGEST OF PRACTICAL KNOWLEDGE FOR THE INVENTOR, 
PATENTEE, AND PROJECTOR. 



JAMES A. WHITNEY, 

Solicitor of Patents and Trade-Marks, Espert :nd Engineer, 

President of the New York Society of Practical Engineering, Professor of 

Agricultural Chemistry in the American Institute, Member of the 

American Society of Civil Engineers, late Editor of 

the American Artisan, etc., etc. 



Wriu ¥ocfc : 

JOHN ROSS A COMPANY, PRINTERS, 
■27 ROSE STREET. 

1878. 









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